PARTICULAR PATENTS-Continued.
14. This was a contest between two patentees of an improvement in lubricators.
The bill was founded upon the act of Congress of July 8, 1870, (16 Statutes at
Large, 207,) re-enacted in the Revised Statutes, section 4918. By the pleadings
an interference of the patents was substantially admitted; but, if not, it was
held that the patents were for the same invention, the arrangements of devices
producing the same results in substantially the same manner: Held, therefore,
that the only remaining question was, which of the patentees was the prior
inventor? Ruled, upon the evidence, that Seibert was the first and original
inventor, and that, consequently, the patent of Garrett was invalid. * Garrett
V. Seibert, 379.
15. The invention covered by David Haskell's patent No. 29,785, for improvements
in sewing-machines, issued August 28, 1860, is useful, and the proper subject
for a patent. * Haskell et al. v. Shoe Machinery Manufacturing Company et al.,
402.
16. Catherine Judson's reissued Letters Patent No. 7,729 for "improvement in cor-
set-springs," granted June 12, 1877, is not anticipated by the patent of G. O.
Schneller, No. 131,305, dated September 10, 1872; nor by the English patent of
Drew & Bayliss, No. 2,057, dated September 9, 1853; nor by the patent of J.
B. Roby, No. 142,279, dated August 26, 1873; nor by the English patent of
Louis Van Caneghem, No. 1,879, dated August 12, 1853. The invention covered
by her letters patent is useful. *Judson v. Bradford et al., 506.
KEIZER-Apparatus for Cleaning Privies.
17. The validity of Reissue No. 6,962, dated February 29, 1876, to Lewis R. Keizer,
assignee, reaffirmed. * Odorlesss Excavating Apparatus Company v. Clements,
KING-Plastering-Hair Bale.
18. The device covered by the following claim-"As an article of manufacture, the
bale B of plasterers' hair, consisting of several bundles, A, containing a bushel
each, by weight, inclosed or incased in paper bags or similar material, united,
compressed, and secured to form a package, substantially as specified"—does
not involve invention and is not patentable. Letters Patent No. 152,560,
granted June 30, 1874, to Wendell R. King, are void.
* King v. Trostel et al.,
616.
LEWIS-Apparatus for Removing Obstructions Under Water.
19. Reissued Patent No. 6,249, granted to Samuel Lewis January 26, 1875, for "im-
provement in apparatus for removing obstructions under water," is invalid.
Cammeyer et al. v. Newton et al., 582.
20. Reissue Letters Patent No. 8,076, granted February 5, 1878, to J. K. Lockwood
for improvement in circular saws, is void, because not for the same invention
as contained in the original patent. *Curtis & Co. v. Branch et al.,
21. The patent (No. 48,300) granted to E. D. Moyer, June 20, 1865, for "improvement
in bottle-stoppers," is not infringed by the device patented (reissue) to C. De
Quillfeldt, June 5, 1877, the two devices being substantially different in con-
struction and mode of operation. *Hicks v. Möller, 593.
PARTICULAR PATENTS-Continued.
NIEDRINGHAUS-Enameled Iron-Ware.
22. Reissued Letters Patent No. 7,779, granted July 3, 1877, to F. G. and W. F. Nied-
ringhaus, for improvement in the "manufacture of enameled iron-ware," are
for the same invention as the original patent and valid. *Saint Louis Stamping
Company v. Quinby et al., 502.
NOBEL-Compounds of Nitro-Glycerine and Gunpowder and other Substances.
23. The decision of the circuit court of California sustained as to the invalidity of
the two principal patents for compounds of nitro-glycerine and gunpowder and
other substances, in the case of The Giant Powder Company v. The California
Powder Works and others. "Giant Powder Company v. California Powder Works
et al., 356.
NOBEL-Explosive Compound.
24. If Nobel's English Patent No. 1,345 be regarded as a patent for the invention
found in No. 78,317, and as having been granted more than six months before
Nobel's application for No. 78,317, still No. 78,317 was not invalid, because it
does not appear that the invention covered by it was introduced into public
and common use in the United States prior to the application for Ne, 78,317.
* Atlantic Giant Powder Company v. Rand et al., 484.
SIMPSON-Insulating Submarine Cables.
25. It is an erroneous view that the Simpson patent (No. 65,019, dated May 21, 1867)
is invalid if he was not the first discover of the insulating property of gutta-
percha. Colgate v. Gold and Stock Telegraph Company, 553.
26. The claim of the patent is not for that discovery, but is for the means and manner
by which that discovery is made use of to construct such a cable as the speci-
fication describes, for such use as is specified: Hence, alleged prior inventions
which mention the use of gutta-percha for telegraphic purposes, but fail to
give any satisfactory or sufficient description of such gutta-percha cable struc-
ture as that devised by Simpson, will not impair the validity of his patent. *Id
TANNER-Railroad-Car Brake.
27. Double brakes, operating upon the two trucks of a railroad-car at the same time,
by a single force, through the medium of connecting-rods, had been publicly
used before the invention of the Tanner brake by Thompson and Bachelder.
The patent for this brake, therefore, could only cover the specific improvement
made by them. The Stevens brake, though invented afterward, being another
and different specific form of brake, is no infringement of this patent. Each
is entitled to the specific improvement invented by him, provided the latter
does not include the earlier. *Chicago and Northwestern Railway Company v.
Sayles, 349.
28. Though the double brakes which were used prior to the invention of the Tanner
brake may have been much less perfect than that, and may have been super-
seded by it, and by other improved forms of brake, nevertheless they were
actually used, and to some good purpose. Their construction and use, though
with limited success, were sufficient to contravene the pretension of Thompson
and Bachelder that they were the pioneers in this department of invention. *Id.
THATCHER-Air-Heating Furnace.
29. None of the claims of J. M. Thatcher's patent No. 71,244, November 19, 1867, are
anticipated by J. P. Hayes' patent No. 20, 640, June 22, 1858. *Thatcher Heat-
ing Company v. Carbon Stove Company, 474.
PARTICULAR PATENTS-Continued.
30. Letters Patent of the United States No. 93,775, granted August 17, 1869, to J.
Wesley Webber, for "a new and useful improved kindling-wood," are void
*Alcott et al. v. Young, 529.
WILLIAMS-Locomotive-Lamp.
31. The claims in reissued letters patent, granted to Irvin A. Williams December
19, 1865, for improvement in locomotive-lamps, are for valid combinations, and
are not anticipated by prior patents showing some, but not all, of the elements
enumerated therein. Williams v. Rome, Watertown and Ogdensburg Railroad
PARTIES TO ACTIONS. See Practice in the Courts, 19.
PATENTABILITY. See Invention.
PATENTS. See Construction of Specifications and Patents; Defenses, 2.
1. Patents in due form, when introduced in evidence in a suit for infringement,
constitute prima facie proof that the alleged inventor was the original and first
inventor of what is therein described as his improvement. * Haskell et al. v.
Shoe Machinery Manufacturing Company et al., 402.
2. Where the patent is correct in form, and is introduced in evidence in a suit for
infringement, it is of itself presumptive evidence that the patentee is the origi-
nal and first inventor of that which is therein described and secured as his
invention. *Cahill v. Brown, 432.
1. It is against the policy of the law to grant a second patent for the same inven-
tion, even to a prior inventor, before its capability of practical use has beer
demonstrated. Ackerman v. Archer, 27.
2. But it is also against the policy of the law to grant a second patent to an appli-
cant claiming to be the prior inventor, even after a patentee has shown the
invention to be capable of use, unless that shall have been ascertained and
shown by the applicant himself. Id.
3. The law aims to secure the grant of the patent to the original and first inventor,
and not to him who, although conceded or admitted, or upon default presumed,
to be the original and first inventor, is not such in fact; and this purpose of
the law ought not to be unnecessarily thwarted by such an exercise of the
discretion vested in the Commissioner as to substitute presumptions for proofs
through the enforcement of forfeitures which can only be reconciled with the
law or with justice on grounds of necessity. Appleby v. Morgan, 116.
POWER OF ATTORNEY. See Attorneys.
PRACTICE IN THE COURTS. See Abandonment, 1; Damages and Profits, 5; Defenses,
3; Disclaimers, 1; Estoppel, 5; Injunction, 2, 5, 6, 9; Licensees; Presumptions, 2.
1. When there is a demurrer to the whole bill, and also to part, and the latter only
is sustained, the regular decree is to dismiss so much of the bill as seeks relief
in reference to the matters adjudged bad, and to overrule the demurrer to the
residue, and direct the defendant to answer thereto. * Giant Powder Com-
pany v. California Powder Works et al., 356.
2. Persons sued as infringers may, if they comply with the statutory condition as
to notice, give the special defenses mentioned in the patent act in evidence
under the general issue. *Bates et al. v. Coe, 365.
3. Such notices, in a suit in equity, may be given in the answer, and the provision
is that if any one of those defenses is proved, the judgment or decree shall be in
favor of the defending party with costs. *Id.
PRACTICE IN THE COURTS-Continued.
4. Defenses of the kind where the invention consists in a combination of old ele-
ments, incapable of division or separate use, must be addressed to the entire
invention and not merely to separate parts of the thing patented. * Id.
5. Infringement being denied in the answer, the burden of proof is upon the com-
plainant, and the court decided that the charge in this case was fully proved.
* Id.
6. Besides these defenses, the assignment of errors presented two others not set up
in the answer: 1. That the circuit court erred in holding that the patentee
was the original and first inventor of the improvement specified in the second
claim. 2. That the circuit court erred in holding that the patentee was the
original and first inventor of the improvement specified in the fourth claim of
the patent. Both of those claims refer to parts of the drilling feature of the
improvement, which is merely a combination of old elements, and the court
overruled the defenses for two reasons: 1. Because they were not set up in the
answer. 2. Because they were addressed to a part only of an indivisible im-
provement and not to the entire invention, as required by the act of Congress.
* Id.
7. Testimony offered by the defendants respecting a prior rejected application of a
third person, the use of his invention, and his prior knowledge of the thing
patented, is not admissible in a suit in equity to show that the patentee was
not the original inventor, unless the facts which such testimony tends to prove
are mentioned in the answer. * Union Paper Bag Machine Company v. Pultz and
8. Masters charged with the duty of computing and reporting the profits of respond-
ents in infringement suits may examine the respondents, and, if necessary, inspect
their books; but it is incumbent upon the complainant to furnish whatever
additional proof may be necessary to enable the master to make the proper
computation. *Brady v. The Atlantic Works, 465.
9. An allowance to the respondents of charges for extra work and materials upon
condition of their assignment of the charges to the complainant will, if the
arrangement is an equitable one, be confirmed by the court. * Id.
10. A statement of the complainant's patent and a general allegation of infringement,
without any specification of the claims alleged to have been infringed, will
suffice to put the defendant upon his answer. At the final hearing the com-
plainant will be permitted to specify the claims on which he will ask for a decree.
*Thatcher Heating Company v. Carbon Stove Company, 474.
11. Where a patent has been granted for fourteen years and extended for seven years
a suit may be brought against an infringer for profits that accrued at any time
during the twenty-one years, if brought within six years after the extended
patent expires. Sayles v. Richmond, Fredericksburg and Potomac Railroad
Company, 478.
12. Issues of fact in a civil cause in the circuit court may be tried and determined
by the jury whenever the parties or their attorneys of record file with the clerk
a stipulation in writing consenting to that mode of trial. *Judson v. Bradford
et al., 506.
13. Thirty days' notice must be given in writing before the trial to the plaintiff, in
order that the evidence may be admitted under the general issue to prove that
the invention of the plaintiff had been previously patented or described in a
printed publication, or that it had been in public use or on sale in this country
for more. than two years before his application for a patent. The notice must
show the name of the patentee and the date of the patent when granted, and
the name and residence of the alleged inventor, when the patentee is not the
inventor. And it must also show the names and places of residence of persons
alleged to have had prior knowledge of the thing patented and by whom it had
been used. *Id.
PRACTICE IN THE COURTS-Continued.
14. Where several suits brought by the same plaintiff against different defendants
for infringement of the same patent are all defended by the same parties, the
fact that after the denial of motions for injunctions in some of them, and before
the submission of motions for injunctions in others, the proofs for final hearing
on the part of the defendants in the former were taken and the cases made
ready for trial, so far as the defendants were concerned, is a sufficient reason
for not granting perliminary injunctions in the latter cases. * Wooster v. Howe
Machine Company, 520.
15. Where a plaintiff moves for an injunction and it is denied on defects pointed out, it
is too late for him to wait until after the defendant has closed his proofs for final
hearing before renewing his motion on papers designed to cure such defects.
* Id.
16. A decree by the court, made at the request and in accordance with an agreement
of the parties litigant, not effective against others not parties thereto. *Spring
et al. v. Domestic Sewing Machine Company.
17. A decree by consent of parties litigant should have very little weight in any
court when produced as an adjudication in favor of the validity of the patent.
*Id.
18. A party who at best is but a mere licensee cannot maintain an action for infringe-
ment in his own name. *Nelson v. McMann et al., 761.
19. The distinction between patentees, assignees, grantees of exclusive rights, and
licensees made by the law of 1836, and thereafter defined by the courts, has not
been changed by the act of 1870. A licensee cannot sue alone in his own name.
*Id.
20. Under Equity Rule 88 an application for rehearing in a patent case cannot be
entertained unless made within the term at which final decree was entered and
recorded, such cases being appealable to the Supreme Court. *Barker v. Stowe.
Same v. Newhall, 598.
21. If the plaintiff is surprised at the testimony of one of his witnesses, he may ask
time to investigate in regard to it, on the ground that no notice of it has been
set up in the answer. * Id.
22. A decision in a previous suit in the same court between other parties determin-
ing the validity of the same reissue and the identity of the defendant's apparatus
will not be disturbed without cognent reasons. * Odorless Excavating Apparatus
Company v. Clements, 605.
23. On the hearing of a bill in chancery to enjoin the infringement of a patent the
court may inspect the patented product, and from this, without other evidence,
declare it not patentable. Everett v. Thatcher et al., 628.
24. The disclosure of gains and profits is an incident of an accounting under a decree
in favor of the plaintiff in a suit in equity on a patent. *Gordon v. Anthony et
al., 638.
25. No person can bring a suit for profits or damages for infringement who is not
the patentee or such an assignee or grantee as the statute points out. *Id.
26. Where a plaintiff in an action at law pending when he became bankrupt has
bought the right of action from his assignee in bankruptcy before any plea
was interposed, it is too late for the defendant to plead in abatement, and the
case should proceed as if he never had been bankrupt. *Gear v. Fitch, 653.
27. In equity the bankruptcy of the complainant and appointment of an assignee
would not abate the suit, but only require a supplemental bill to be filed; and
the reconveyance to the complainant pending the suit renders such proceeding
unnecessary. *Id.
PRACTICE IN THE PATENT OFFICE. See Amendments; Appeals; Application for
Patent; Articles of Manufacture; Assignments, 4, 6, 7; Attorneys; Claims, 7,
10, 11, 12, 14; Concessions; Construction of Statutes, 2, 10, 12; Description, 3;
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